By the Court.

This is an appeal from the judgment of the District Court, for the County of Goodhue.

The United States brought an action of Trespass against the Minnesota and North Western Rail Road Company, for entering upon certain lands of the United States, in the County of Goodhue. The complaint alleges that on a certain day, the Defendants, a body corporate, broke and entered the lands in question, and cut down and carried away certain trees, &c.

The Defendants admit the acts charged in the complaint but set up by way of justification; First, An. Act of the Legislature of Minnesota, approved March 4th, 1854, incorporat*130ing said company, and a compliance with its provisions up- to the 29th of June, 1854 ; and .

Second, The Act of Congress, approved June 29th, 1854, granting certain lands to the Territory of Minnesota, to aid in the construction of a Railroad, and a subsequent compliance with all the provisions of the act first named.

Third, That pursuant to the authority given and rights conferred by these acts, the Defendants on the tenth day of October, located the track of their Railroad, contemplated by the acts in question, upon the locus m quo, and that the 'supposed trespass, was committed by cutting and carrying away, trees upon the track of said road, and in the construction of said road.

The Plaintiff replies that the act oí Congress, approved June 29th, 1854, was repealed by the act approved August 4th 1854, entitled “ An Act for the relief of Thomas Bronaugh,” &c.

To this reply the Defendant demurs, alleging that said act of August 4th, is null and void. :

The District Court sustained the demurrer and from this judgment, the appeal in this case is taken.

The first question presenting itself for consideration in deciding this case is, did the Territory of Minnesota acquire any, and if any, what interest in the lands granted by Congress.

This question can best be answered by referring to the act „ of Congress making the grant.

By referring to this act it appears that the land “ is hereby granted to the Territory of Minnesota.” It also provides “that the land shall be held by the Territoryagain “ the lands hereby granted, shall be subject to the disposal of any Legislature thereof.” But again it is provided that “ the lands unsold shall revert to' the United States.” From all this, it appears manifest, if words are to be considered as the representatives of ideas, that by the act of June 29th, 1854, a grant of a present interest in the lands in question was made to'the Territory.

It is true that the fourth section of the act provides that the-' lands hereby granted shall be disposed of only in manner following, that is to say, no title shall rest in the said Territory -of Minnesota, nor shall any protest issue until a specified con*131dition is performed. But it cannot he possible, that this section-was intended to annul the grant of a present interest, which had been clearly made. The only fair and rational meaning of this section is, that the power of disposal is qualified, as it professes its object to he in the outset. In other words it provides that no title shall he given by the Territory, not subject to the condition which may divest the estate.

The phraseology of the section is probably not as well chosen as might be desirable; hut in my judgment any other construction would be absurd.

The conclusion,therefore, seems to meto he inevitable, that a present estate was granted, subject to be divested, upon a conditioji sixbsequent. This construction gives full effect to the manifest intention of the parties.

The next question arising is whether the Defendants acquired any interest, and if so, what interest under this act of incorporation and the first mentioned act of Congress.

Upon this point, the act of incorporation is clear and explicit. By this act of incorporation it is provided that all such lands as may he afterwards granted to the Territory by Congress to aid in tbe construction of the Bailroad, shall immediately become the property of the Bailroad Company, without any further act or deed. The Bailroad Company, therefore, so far as this act can give it, acquired all the right and interest which ' the Territory had acquired under the act of June 29th.

The Legislature had an undoubted right to transfer any. interest which might accrue to the Territory, and it unquestionably has done so.

The third and last question to be considered is: Had Con-. gress the right to revoke the grant, made by the act of June 29th, 1854?

If I am right in the conclusions at which 1 have already arrived, it would, as it seems to me, necessarily follow tbat Congress had -not such a right.

An interest in or right to lands, franchises, &c., once vested cannot he divested by any act of the grantor, unless by agreement of the parties to the grant.

“ Every grant of a franchise (says Judge Story) is necessarily exclusive, so far as the grant extends, and cannot be resumed *132or interfered with. The Legislature cannot recall its grant nor destroy it. In this respect, the grant of a franchise does not differ from a grant of lands. In each case the particular franchise or particular land is withdrawn from legislative operation, and the subject matter has passed from the hands of the government.”

The old rule of law in cases of grants by the king in virtue of his prerogative, was said to be that nothing passed without clear and determinate words, and the grant was construed most strongly against the grantee, though the rule was otherwise as to private grants. This rigid rule had many qualifications and has been materially modified.

If the royal grant was not a mere donation, or bounty, but one founded on a consideration, the stern rule never applied, and the grant was always construed favorable for the grantee, or rather according to its fair meaning, for the grant is a contract. 2 Kent, 556.

The grant of lands in this case was made upon a good consideration.

The Act of Revocation is clearly in conflict witii the Constitution of the United States. (Amendments to the Const., Art. 5.) Private property can only be taken for public use, and then only upon compensation being given. •

Neither can any one be divested of his property but by due course of law, that is, according to the practice of Courts of Justice.

It is held by the Supreme Court of Pennsylvania, 2 DalL, 304, that

“ A man can be divested of his property by the Legislature only in three ways:

“Fvrnt, By a stipulation between the Legislature and the owner.

“Sdeond, By Commissioners mutually elected by them.

“Tlvird, By a jury.

“ Tbe Legislature cannot of itself determine the amount of the compensation.”

But, independent of the Constitutional provision referred to, the Repealing Act is invalid.

Tliere is a principle inherent in the nature of society, as old *133as civil government itself, which sets bounds to the powers of legislation. It is the principle which protects the life, liberty and property of the citizen from violation in the unjust exercise of legislative powers. If the property of an individual may he seized without compensation, our security for life, liberty and property is not as great as we have generally supposed. A claim to such a right is of a startling character. Chief-Justice Marshall says, Peep vs. Fletcher, 6 Cranch, 87: “ If an act be done under a law, a succeeding Legislature cannot undo it. The past cannot be recalled by the most absolute power."1

It is not pretended that one Legislature can, in the legitimate and ordinary course of legislation, bind a succeeding Legislature; hut an act not expressly permitted by the Constitution, which impairs or takes away rights vested under pre-. existing laws which are in the nature of contracts, is unjust, unauthorized and void.

Such is the rule in all civilized States where the common or the civil law is established.

The government of the United States is one of limited powers. It is only sovereign in a qualified sense. Congress can do what the Constitution authorizes it to do, and no more. Certain powers undoubtedly arise by implication, hut no power can he implied authorizing the Legislative department to take a man’s property without compensation and without due course of law. This power is not included in any general grant of legislative powers. A power to do an act which has been regarded as dishonest among individuals from time immemorial in all civilized countries, cannot he implied from any of the powers granted by the Constitution; and, as such a power is not expressly given, it cannot he exercised.